Easement And Right Of Way


An easement is the right to use the property of another. It comes in two types. Gross easement and appurtenant easement. A gross easement is a right over use of your property, held by a specific individual. While appurtenant easement are a right over use of your property for the benefit of adjoining lands. Gross easement gives right over use of your property to those adjoining lands no matter who owns them.
In Olusanya v Osinleye (2013) 7 NWLR (Pt 1367) 148. The Supreme Court explained the meaning of easement thus:
“An interest in land owned by another person, consisting in the right to use or control the land or an area above or below it. For specific purpose (such as to cross it for access to public road) …. Unlike a lease or license, an easement may last former but it does not give the holders the right to possess, take from, improve or sell the land”.
It further explained: “It is a right enjoyed over a property of another person and must be created by grant (express, implied or presumed or by statute).
It is a right which is enjoyed as real property….”
However the rights of easement are limited in the interest of fairness. According to the Supreme Court: “The primary recognised easement include:
a) A right of way.
b) A right of an eating for any purpose relating to the dominant estate (ie your own estate).
c) A right to the support of land and building.
d) A right of air and light.
e) A right of water.
f) A right to do some act that would otherwise amount to nuisance.
g) A right to place or keep something on the servient estate (i.e your neigbour’s property).
h) An easement including a right of way is typically granted by one land owner to another land owner. Generally, easement are granted by will, by deed or by a contract. However, an easement can also be granted by an adverse possession, which is known as prescriptive easement is gained by one person’s open, notorious, continuous and adverse use of the land of another. It is important to note that that easement only grant non-possession right to use other’s lands, they doesn’t grant any ownership rights to them. Right of way easement don’t allow their holders to sell the land of another individual, over which they have the right to travel. Also, easement can be terminated through explicit expiration, such as a right of way for a period of 25 years. However, easement on a deed remains with the land in perpetuity.


Nkechi Bright-Ewere